Docter v. Furch

65 N.W. 161, 91 Wis. 464, 1895 Wisc. LEXIS 89

Opinion

Cassoday, C. J.

This is the third time the performance of the written contract of July 14, 1885, whereby Caroline Hellberg agreed to convey her homestead to the plaintiffs, has been before this court. August 13, 1885, the plaintiffs notified the said Caroline, in writing, to the effect that, if the land mentioned contained less than forty-nine acres, then they thereby offered to pay her such proportion of the purchase price as the number cf acres actually contained in the premises bore to the forty-nine acres, and insisted upon the fulfilment of the contract on that basis, and in case of her neglect or failure to comply therewith they would take steps to enforce such performance. The court finds by the third finding mentioned in the foregoing statement that August 25,1885, and within the six weeks mentioned in the contract, the said Caroline tendered full performance of the contract on her part, and the plaintiffs refused to accept such performance, except on condition that there should be a deduction of more than $5,000 from the purchase price, and upon such refusal being made the said Caroline tendered back the $100 they had paid her, and interest. September 5, 1885, the plaintiffs commenced an action against the said Caroline, alleging, in effect, that there were only thirty-two and one-half acres of the land, and insisted upon a conveyance of the premises upon paying and securing to be paid at the rate of $414.28 per acre, which was more than $6,500 less than the purchase price. The defendant Caroline answered the com plaint in that action upon the merits. On the trial of that action the court sustained a demurrer ore temos to the complaint, on the ground that it stated no cause of action, and the judgment thereon dismissing the complaint was affirmed by this court March 16, 1886. Docter v. Hellberg, 65 Wis. 416.

It is said in the opinion in that case: “ The agreement does not purport to be for the conveyance of forty-nine acres from a larger tract. The number of acres mentioned in the agreement purports to be descriptive, but in no way aided the description. The agreement was simply to convey the land then occupied by the defendant, — ■ nothing more. If the land so occupied did not contain as many acres as mentioned in the agreement, then such mention, to the extent of the deficiency, Aras a false assertion. Assuming it to have been false, yet as it in no way aided the description, and the land was otherwise sufficiently described, it cannot frustrate the agreement.” The opinion then suggests, as the most serious question in the case, whether such mention of forty-nine acres A\ms to have the effect of a written guaranty or covenant that the farm so occupied did in fact at the time contain that number of acres,— citing a few of the numerous cases on both sides of that question. It is then said: “It may be doubtful whether an agreement to convey is of any broader significance than the covenants of Avarranty in such a deed. Upon this demurrer ore- temos Ave do not feel called upon to determine the question suggested, as the case may, upon final hearing, disclose a different state of facts. We may assume for' the purposes of this case that the law is the other Avay, and that the agreement in writing was a guaranty that the land therein described contained the number of acres therein mentioned, and that the plaintiffs are entitled to a conveyance of the land owned, and an abatement from the purchase price by reason of the deficiency, as indicated in the authorities.” The opinion then undertakes to state the rule for such deduction in case of such deficiency, on such assumption as to the law, but, by some inadvertence, stated the rule inaccurately, as is manifest from inspection; and the same was fully explained and corrected in Semple v. Whorton, 68 Wis. 636, 637; Docter v. Furch, 76 Wis. 161. The opinion concludes: “The plaintiffs, having failed to allege performance or tender of performance on their part, even upon the assumption indicated, are in no position to enforce performance upon the part of the defendant.” Docter v. Hellberg, 65 Wis. 424.

Thus, the plaintiffs were judicially informed by this court, within seven months after they had absolutely refused to perform the contract according to its true construction as subsequently adjudged by this court, that their claim to any reduction from the contract price was doubtful and based upon a proposition of law upon which courts were divided, and that they were not entitled to a “ conveyance upon the arbitrary conditions proposed in the complaint,” nor upon any conditions other than those prescribed in the contract as the same should eventually be construed by the courts.

A little over a month after that decision, Caroline Hell-berg died, May 4,1887, and more than thirteen months after that decision, and nearly two years after such refusal to perform the written contract so made, the plaintiffs commenced this action against these defendants, not to enforce the contract so actually made, nor as it should be eventually, construed by the courts, but to force the defendants to perform a different contract, and one resting partly in parol, which they claimed to be the legal effect of the one actually made. The original complaint, and the same after being amended by leave of the court, July 12,1888, alleged, among other things, in effect, that at the time of making the written contract, July 14,1885, and previously, the said Caroline Hellberg, then in her lifetime but since deceased, falsely stated and represented to the plaintiffs that the land therein mentioned contained forty-nine acres, and that the plaintiffs, fully believing and relying upon such statements and representations, made said contract, and insisted upon the conveyance being made upon their paying and securing the payment of the purchase price named in the contract, after deducting therefrom such proportionate amount of between six and seven thousand dollars, by reason of such alleged deficiency; and the trial court held in favor of the plaintiffs on that theory. Dooter v. Ftiroh, 76 Wis. 155-158. On the appeal from that judgment, this court, after holding, in effect, that the determination of the former appeal merely held that the complaint failed to state a cause of action, and hence was no bar to this action (76 Wis. 160-162), carefully reviewed the evidence in the record, and in effect reached the conclusion that there was “ very serious doubt whether Mrs. Hellberg ever stated to the plaintiffs, or either of them, that the farm contained fortj^-nine acres of land; ” that, “ assuming that she did, still we are satisfied that such statement, if made at all, was merely incidental and by way of description or estimation of the farm, and without any intent or purpose to agree or guaranty that it in fact contained that number of acres. Assuming that she did so casually make such statement, still we are convinced, by a clear preponderance of the evidence, weighed in the light of all the circumstances and probabilities in the case, that neither of the plaintiffs ever had any reasonable ground for relying upon any such statement, and hence that neither of them ever acquired any right, in law or in equity, to an abatement by reason of such reliance. The result is that the plaintiffs are entitled to no abatement from the amount of the purchase price named in the contract, unless they are entitled to it, as a matter of law, from the mere recital of the number of acres in the contract itself.” 76 Wis. 162-168. We then held, upon authorities and reason, that the plaintiffs were not entitled to any abatement from the purchase price named in the contract.

76 Wis. 168-171. Accordingly the judgment was reversed and remanded at first “ for further proceedings according to law.”'

Thereupon counsel for the plaintiffs moved for a reargument on the ground that this court had “ failed to make a final disposition of the case and to direct the circuit court to enter such a decree as ” they were entitled to, and, in effect, offered to pay the purchase price named in the contract, without any deduction. In reply, counsel for the defendants contended that such offer to perform the contract, so made in that motion, was the first time in the history of this litigation that any such offer had been made, and that it was an attempt thereby to bring before this court a new case, in respect to which no issue had been made, and hence which presented no opportunity for defense. This court took that view of the case, and so, without changing the effect of the mandate, made the same more explicit by directing the dismissal of the complaint unless the trial court, in its discretion, should grant leave to amend the complaint as indicated. 76 Wis. 171.

That decision was made March 18,1890. On May 27,1890, the plaintiffs applied to the trial court for leave to amend the complaint by offering therein to pay, and to secure to be paid, the full contract price without any abatement, and such leave was granted by the trial court June 21, 1890; and the contention of the plaintiffs is now based upon that complaint as so amended. The defense is, in effect, such refusal to perform the contract August 25, 1885, the great increase in the value of the property, and the conduct of the plaintiffs as indicated.

It seems to be conceded that the evidence on this last trial is substantially the same as on' the former trial. The' trial court on this last trial found, in effect, as this court had previously found, that the claim of the plaintiffs that they had been induced to make the contract by the false statements and representations of Mrs. flellberg as to the number of acres was unfounded and untrue; that the land in question “ had clearly-defined boundaries, well known to 'or easily observable by the plaintiffs,” and “ that all the parties to said contract, at the time of its execution, understood that it was for the sale of the land so occupied and bounded for the gross price named in the contract, irrespective of the number of acres of such land;” and “ that neither of the plaintiffs overbad any reason able ground for relying on any such statements [as were alleged to have been made by Mrs. Hellberg] as a guaranty or warranty of quantity.” Such findings must not only be regarded as verities in the case, but res adjudieatm. Whatever may be inconsistent therewith in the other findings must necessarily yield to such adjudicated facts. True, as indicated, the trial court found, in effect, that all such litigation and contention on the part of the plaintiffs had been in good faith. Just how the plaintiffs could, August 25,1885, deliberately refuse to perform the only contract aotually made, and then contend and litigate for so many years for the establishment of a contract that was never made, when “ all the parties to said contract, at the time of its execution, understood ” it to mean what it was finally adjudged to mean, is not perceivable. “ In good faith ” simply means “honestly, without fraud, collusion, or deceit; really, actually, without pretense.” Burrill. Assuming that the plaintiffs did so contend and litigate in good faith, yet such good faith cannot be construed to mean anything more than without fraud, without deception, without suborning any witness, without pretense, and with an holiest and sincere expectation of final success. But good faith, in such a case, cannot be based upon the mere sincerity, honesty, and good intentions of the party, not evidenced by conduct; otherwise we would have one standard for the weak, ignorant, and stupid, and another for the able, learned, and wise. True, it is found that such faith and belief of the plaintiffs was founded on the advice of counsel, predicated on statements made by them to counsel of the same facts which they had testified to, and which both courts found to be untrue. Since the statements upon which the advice was predicated were unfounded, the conduct of the plaintiffs based upon such advice must, in any view of the case, be regarded as unwarranted.

The question recurs whether the plaintiffs, after having, August 25, 1885, deliberately refused to perform the written and only contract they ever made for the purchase of the laud, and thereafter having contended and litigated for four years and nine months to compel Mrs. Hellberg and her children to perform an alleged contract which neither she nor they ever made, and then, after having been defeated, can, nevertheless, in equity, specifically enforce the performance of the same contract which they so refused to perform over ten years ago. In Williams v. Williams, 50 Wis. 316, Ryak, C. J., speaking for the court, said: “Specific performance will not be decreed when, for any reason, it would be inequitable. . . . It is a settled principle that a. specific performance of a contract is not a matter of course, but rests entirely in the discretion of the court, upon a view of all the circumstances. . . . The question is not what the court must do, but what it may do under the circumstances. A court of equity must be satisfied that the claim for a deed is fair and just and reasonable, and the contract equal in all its parts, and founded on an adequate consideration, before it will interpose with this extraordinary assistance.” These expressions are elementary, and have frequently been sanctioned by this and other courts. Combs v. Scott, 76 Wis. 667; Sogers v. Van Nortwick, 87 Wis. 429-431; Seymour v. Delaney, 3 Cow. 445, 15 Am. Dec. 270. It seems to be conceded that had the plaintiffs merely delayed in making any offer to perform for the four years and nine months, under the circumstances of this case, it would have been sufficient to defeat this action,— especially where, as here, there has been a great increase in the value of the land. This is abundantly shown in the cases cited and the adjudications therein mentioned. Here the plaintiffs not only failed to perform during the time mentioned, but, after having expressly refused to perform, they attempted, during all that period, to compel the performance of an alleged contract never made, and thereby caused, great expense to the defendants and their mother. Boyd v. Schlesinger, 59 N. Y. 301; Emrich v. White, 102 N. Y. 657; Datz v. Phillips, 137 Pa. St. 203; Weingærtner v. Pabst, 115 Ill. 412; and numerous other cases cited in the brief of counsel for the defendants. See, also, Foster v. M’Intee, 23 L. R. Ir. 535; De Sollar v. Hanscome, 158 U. S. 216. While courts are to be guided by the settled principles of equity in decreeing or refusing to decree specific performance, yet it is always to be done with reference to the facts of the particular case. Hennessey v. Woolworth, 128 U. S. 438; Mc-Cabe v. Matthews, 155 U. S. 550.

Upon the record in this case, we are .constrained to hold that the trial court properly refused to decree specific performance.

By the Oourt.— The judgment of the circuit court is affirmed.

Pinhey, J., took no part.